"Literature shapes law," declares Aaron Schwabach. "For every real-life model of advocacy, adjudicative, and rule-making roles that the average first-year law student has, there are a hundred fictional models, from Atticus Finch to, well, Albus Dumbledore."
So begins "Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World," a tour-de-force exploration of the "deeply flawed legal regime" that governs the world of Harry Potter, published in 2005 (and thus before the release of the seventh and concluding volume). Snicker if you like, but Schwabach's assertion that "For millions of readers, especially younger readers, the legal regime of Harry's world will form expectations about legal regimes in Mugglespace," is entirely defensible.
But feel free to chuckle merrily too. Schwabach, a law professor at Thomas Jefferson College of Law in San Diego, has loads of fun. His juxtaposition of the memory-destroying Memory Charm curse used in the Potter-verse with the "flashy-things" employed by the good guys in "Men in Black" and the casual wiping of droid minds in "Revenge of the Sith" is a virtuoso display of comparative fantasy/sci-fi legal analysis. I would say there's not enough of this kind of work being done today, but a review of the footnotes in Schwabach's authoritatively annotated paper suggests I would be sadly mistaken if I did so.
Schwabach's focus is on the inconsistencies that plague how the Ministry of Magic government enforces the "unforgivability" of some curses -- notably, the torture-inflicting Cruciatus, Avada Kedavra (the Killing Curse), and the enslaving Imperio -- while turning a completely blind eye to others, such as the Dementor's Kiss and the Memory Charm. There's also the troubling issue of how Wizardry law and Muggle law intersect, particularly insofar as concerns the right to due process, a fair trial, legal representation, et cetera, all of which appear to be rather cavalierly treated by the Ministry of Magic regime.
Just as in the Muggle world, these different legal systems interact, when necessary, through international law. Wizards have their own structures of international law, which have adopted rules such as the International Statute of Wizarding Secrecy. International human rights law, however, seems to mean little more to the Ministry of Magic than does British Muggle law. Executions, let alone executions ordered by administrative officials without any judicial determination of guilt, are forbidden by Protocol 6 to the European Convention on Human Rights, to which the United Kingdom became a party in 1999. While (depending on which chronology is accepted) Protocol 6 might not have been in effect for the United Kingdom at the time of the execution of Crouch (assuming that soul-destruction falls within the definition of execution), the more general provisions of the International Covenant on Civil and Political Rights would still have prevented execution without due process and by such cruel means.
OK, that might not be as funny as Schwabach's treatment of the raw deal given to Buckbeak the hippogriff or the footnote citing Foucault in his discussion of Harry's use of the Cruciatus curse on Bellatrix Lestrange. But Schwabach's treatment of how wizardry law does or does not compare to British and international law suggests a subversive parallel reading. What if, instead of the Potter-verse, Schwabach's real target for analysis was the Bush administration-verse, with its justifications for torture and extrajudicial detentions?
This reading, I would argue, is supported by Schwabach's conclusion.
An entire generation, perhaps many generations, of future lawyers, litigants, lawmakers, judges, jurors and citizens is confronting these questions. What is the rule of law? Should it be absolute? What limits should be placed on government power, and on private power? When is it right to disobey not only unjust laws, but just ones? Will the author present us with answers in the final volume, or only with more questions? The latter will almost certainly be more useful to the reader than the former; we have already seen that the Ministry's regime is not one to emulate, but ultimately each society, and perhaps each generation, must re-create the rule of law for itself.
Each generation must re-create the rule of law for itself. With memories of a nominee for the position of attorney general of the United States refusing to tell the Senate Judiciary Committee whether he considered "waterboarding" to be "torture" still fresh in our minds, Schwabach's challenge is practically Dumbledorian in its understated wisdom.
Salon reviews of Harry Potter films:
"Harry Potter and the Sorcerer's Stone"
The long-awaited movie is faithful to J.K. Rowling's book, but the fantasy isn't very fantastic and the evil just isn't dark enough.
By Andrew O'Hehir, Salon
"Harry Potter and the Chamber of Secrets"
Despite terrific special effects and funnier gags, "Harry Potter and the Chamber of Secrets" finds a way to make J.K. Rowling's marvelous series into a deadly bore.
By Stephanie Zacharek, Salon
"Harry Potter and the Prisoner of Azkaban"
Hippogriffs, Dementors and Harry, oh my! Director Alfonso Cuaron finally decants the essence of J.K. Rowling's work and brings us one of the greatest fantasy films of all time.
By Stephanie Zacharek, Salon
"Harry Potter and the Goblet of Fire"
Harry and his friends are growing up, but this latest Potter film may leave you struggling with your own childhood demons.
By Stephanie Zacharek, Salon
"Harry Potter and the Order of the Phoenix"
Patches of magical beauty rescue this sprawling adaptation of the fifth book in J.K. Rowling's beloved series.
By Stephanie Zacharek, Salon
"Harry Potter and the Half-Blood Prince"
The sixth film in J.K. Rowling's series has beautiful special effects, and something even more rare: Magic.
By Stephanie Zacharek, Salon
Other Salon articles related to the films:
Harry Potter doesn't get "Blue Velvet"
The boy has no profound psychosexual life, which keeps the film from being dangerous -- and important.
By David Thomson, Salon
Harry Potter and the art of screenwriting
Michael Goldenberg talks about the pleasures and pitfalls of adapting "Harry Potter and the Order of the Phoenix" for the big screen.
By Rebecca Traister, Salon
The sexual awakening of Hermione
How "Harry Potter" star Emma Watson is navigating the tricky transition from adorable child actor to mature adult.
By Joy Press, Salon
Salon reviews of Harry Potter books:
"Harry Potter and the Sorcerer's Stone"
"Harry Potter and the Sorcerer's Stone," like all great escapist reading, takes you happily back to where you already were.
By Charles Taylor, Salon
"Harry Potter and the Goblet of Fire"
With her fourth Harry Potter book, J.K. Rowling takes her young hero to his darkest adventure yet.
By Charles Taylor, Salon
"Harry Potter and the Order of the Phoenix"
No, Hogwarts isn't a hotbed of drugs, smoking and sex (at least not yet). But J.K. Rowling's rich and huge new installment unmistakably brings our bespectacled hero into adolescence.
By Laura Miller, Salon
"Harry Potter and the Half-Blood Prince"
Harry learns more about his mysterious nemesis -- and the brutal reality of being 16 -- in J.K. Rowling's tricky, but ultimately satisfying, penultimate volume in the "Harry Potter" series.
By Laura Miller, Salon
"Harry Potter and the Deathly Hallows"
Does J.K. Rowling's final installment, "Harry Potter and the Deathly Hallows," provide the magical ending to the beloved series her readers so desperately long for?
By Laura Miller, Salon
Other articles related to the books:
Dumbledore? Gay. J.K. Rowling? Chatty.
What happens when authors like J.K. Rowling can't stop telling their own stories?
By Rebecca Traister, Salon
A.S. Byatt and the goblet of bile
The author's recent New York Times Op-Ed shows that she doesn't understand why so many of us love Harry Potter. Maybe it's just too much fun.
By Charles Taylor, Salon
A list of their own
Has Harry Potter changed the course of the New York Times Book Review -- and the children's book market -- for good or for evil? It depends on whom you ask.
By Kera Bolonik, Salon
Of magic and single motherhood
Bestselling author J.K. Rowling is still trying to fathom the instant fame that came with her first children's novel.
By Margaret Weir, Salon
Harry Potter's girl troubles
The world of everyone's favorite kid wizard is a place where boys come first.
By Christine Schoefer, Salon
Can 35 million book buyers be wrong? Yes.
The cultural critics will, soon enough, introduce Harry Potter into their college curriculum, and The New York Times will go on celebrating another confirmation of the dumbing-down it leads and exemplifies.
By Harold Bloom, The Wall Street Journal
On the Potter lifestyle:
Potterpalooza
For the Quidditch players, wizard rockers and would-be witches who gathered at a New Orleans Harry Potter convention, this is the dawning of their summer of love -- and loss.
By Rebecca Traister, Salon
For Harry Potter fans about to rock, we salute you
A global network of Potter-influenced bands inspired kids like 8-year-old Darius to make their own wizard rock. Will fans keep the music alive?
By Elisabeth Donnelly, Salon
The end of the affair
For almost a decade, Harry Potter and Tony Soprano have been my intimate companions. Now it's time to disentangle myself from their lives and say goodbye.
By Rebecca Traister, Salon
Wizard people, dear reader
The first chapter in the famed unauthorized "re-telling" of the Harry Potter films.
Open Salon box office in review (10/18/09)
Weekend Wrap-Up Repost (I dunno what happened)
Is there enough of me left for a novel?
You Say Childless Like It's A Bad Thing
Some Summer Movie Box Office Results